What is a common law marriage?

Posted by on June 19, 2014

A common law marriage is a non-ceremonial marriage in which two people agree that they are married, live together, and present themselves as husband and wife in a permanent and exclusive relationship that assumes marital duties and obligations. These marriages have developed as a matter of custom, and they are based on the couple’s conduct. The underlying theory of these non-solemnized marriages is that once two people have held themselves out to the world as husband and wife, they should not be able to deny it later if a dispute arises.

Michigan abolished common-law marriage in 1957. Today, a couple must consent and obtain a license to marry in Michigan. However, if a couple in an existing relationship had a valid common-law marriage prior to 1957, the state will still recognize the common-law marriage. In addition, Michigan will recognize a common-law marriage that is valid in another state under the “full faith and credit” clause of the U.S. Constitution. A Michigan court can grant a divorce for a valid common-law marriage.

Even in the few states (and the District of Columbia) where common-law marriages are recognized, there are strict requirements; cohabitation alone will not establish a common-law marriage. If a couple wants their out-of-state common-law marriage recognized in Michigan, it is advisable for them to consult with a Michigan attorney. In many cases, it is wise to establish a durable power of attorney and a medical power of attorney. These enforceable documents provide a common-law couple with peace of mind in the event of an emergency.

Although Michigan no longer recognizes common-law marriage, unmarried couples who live together may choose to enter into a cohabitation agreement in which they outline their mutual obligations with respect to finances, real and personal property, child care, and other issues. These agreements are enforceable as a matter of contract law in Michigan.

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